11.16.2007

In Baseem Shakir Williams, we did not consider the effect of statutory provisions authorizing sentencing enhancements based solely on recidivism in determining the maximum sentence prescribed by law for a predicate offense. Our sister circuits have split on the question. Compare United States v. Henton, 374 F.3d 467, 469 (7th Cir.2004) (distinguish-ing Baseem Shakir Williams, and holding that a violation of an Illinois statute that provided “that possession of less than a gram of cocaine with the intent to deliver is a Class 2 felony” carrying a statutory maximum of seven years but also permitting “any person convicted of a second or subsequent offense ... [to] be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized” qualified as a “serious drug offense” if the offender was eligible for the enhancement (internal quotation marks omitted)), with United States v. Rodriquez, 464 F.3d 1072, 1080 (9th Cir.2006) (“For federal sentencing enhancement pur-poses, when we consider the prison term imposed for a prior offense, we must consider the sentence available for the crime itself, without considering separate recidivist sentencing enhancements.” (internal quotation marks omitted)).